The turning point for internet freedom

Media freedom in South Africa has been receiving bad press recently, although most of the attention has focussed on threats to print and broadcasting freedom. Little attention has been paid to creeping censorship of the supposedly most democratic medium of all, namely the internet, says Professor Jane Duncan.

Over the past 10 years, the government has developed a complex web of controls that has made internet censorship much more possible. Many legislative measures lie dormant, only to emerge when they are needed to curb controversial content.

In developing these controls, the government has relied on two of the three most popular reasons for curtailing internet freedom, namely protection of children, national security and protection of intellectual property. Unfortunately, governments often abuse these reasons to legitimise an internet control agenda.

Internet freedom is a hot topic globally. In the wake of the Wikileaks diplomatic cables saga and the North African uprisings, governments are recognising the power of online media and moving rapidly to control it. While portraying itself as a champion of internet freedom, the Barack Obama administration has been leading an assault on Internet freedom at the behest of an entertainment industry that wants express guarantees for its intellectual property.

Private companies are also enclosing the internet, erecting ‘walled gardens’ where users cannot access non-approved content. Social media users’ data is being mined to ‘sell’ them to advertisers, and procedures to opt out are often not user-friendly. These trends are all eroding the free and open nature of the internet. As a result, the internet of today is no longer the democratising, transformative medium that it promised to be ten years ago, in its pre-market formation phase.

Internet freedom has become topical in South Africa too, after the Film and Publications Board – a portfolio organisation of the Department of Home Affairs – used a section in the Film and Publication Act to classify disturbing or harmful or age-inappropriate material for children, to ban ‘The Spear’ painting for children under 16 years of age. As the Goodman Gallery has taken the painting down, this classification now applies to online versions of the painting.

According to the Board’s judgement on applications for classification of the painting, ’younger people and sensitive people may find the themes [in the exhibition] complex and troubling’. In announcing the decision to classify the painting, the Board’s chief executive officer, Yoliswa Makhasi, argued that the painting was not being classified simply because of the exposure of genitals, but because the artwork ‘…has forced society to revisit its painful past’.

The painting and exhibition as a whole are not without their problems. The exhibition is an important critique of the growing culture of self-enrichment in the ruling party. But it is also at times didactic, simplistic and flirts dangerously with racial stereotypes. However, even problematic art should have its place in the sun, but the controversies around the painting have worked perfectly to the advantage of South Africa’s internet control proponents.

The Board’s attempt to prevent children from accessing the painting to shield them from South Africa’s social divisions, past and present, is deeply misguided and in fact dangerous. If these divisions are hidden away, then children will be denied important opportunities to understand the true nature of the society in which they live. They will not develop the coping skills necessary to deal with these less savoury aspects of South African society when they experience them in everyday life.

There are also inherent dangers in a government agency deciding what children can and cannot see, as this can easily lead to publications that are critical of the government being censored. The Board’s reasons for classifying the painting strongly suggest a ‘nanny state’ mentality and an underlying moral conservatism, rather than a legitimate concern with protecting children from harm.

Creeping censorship of the internet should be of as much concern as media censorship, as the internet is likely to become ubiquitous in the future. The government’s decision to ensure internet-enabled set top boxes for digital terrestrial television will extend access, as will its plans to ensure universal access to the internet by 2019 via a national broadband network. Mobile internet coverage has also greatly increased internet access, and the licensing of Long Term Evolution networks will continue this trend.

With the passing of the Regulation of Interception of Communications Act, the government developed the capability to spy on internet users. In the case of content originating outside the country, they can do so without an interception direction, which creates space for wide scale abuses of the government’s extensive monitoring and surveillance capacity. Government appointed cyber-inspectors enjoy overbroad powers to inspect any website for evidence of cyber-crime, although this provision has not been enacted yet.

But the most significant setback to internet freedom occurred when the Film and Publications Board was given jurisdiction over internet content. This is in spite of the fact that internet service providers also self-police internet content through a notice and take-down procedure run by the Internet Service Providers Association of South Africa.

A controversial amendment was introduced to the Film and Publications Act requiring any publication, with the exception of a newspaper publisher recognised by the Press Ombudsman’s office, to be submitted for classification if it contains the following material: sexual violence which violates or shows disrespect for the right to human dignity of any person, degrades a person or constitutes incitement to cause harm; advocates propaganda for war; incites violence; or advocates hatred based on any identifiable group characteristic and that constitutes incitement to cause harm.

In the case of hate speech and sexual violence, the provisions are broader than the Constitutional limitations on freedom of expression, which makes them unjustifiably censorious.

The published materials falling within these categories would either be age restricted or banned entirely. Materials that would ordinarily be banned under this section would be age restricted if they were found to contain public interest content, or had artistic or scientific merit. This was a significant departure from the initial Act, which maintained that public interest or artistic content should not be restricted at all.

The main problem with these provisions is that they give the government the power to exercise prior restraint over published material, and even censor material critical of its own performance.

There is disagreement over whether these provisions apply to the internet. What adds to the confusion is that the Board has failed to set out classification guidelines for internet content, which implies that they do not consider these provisions to apply to the internet. However, the definition of ‘publication’ in the Act explicitly refers to the internet, which suggests that these provisions do apply.

If they do, then online publishers have a mess of massive proportions on their hands. These provisions are un-implementable in the online environment, yet failure to implement them is a criminal offence.

For one thing, the provisions would discriminate against online publishers, as the Act would subject them to a pre-publication classification procedure that other media are not subjected to. Broadcasters and newspaper publishers are not required to submit controversial material for classification, mainly because they resisted attempts to make the Act apply to them. If they publish unethical or unlawful material, then they are subjected to post-publication judgements and sanction. This means that the government has the power to censor the internet much more easily than other media.

A further problem is that there is no practical way for online publishers to restrict access to age restricted material, especially material hosted by sites outside the country. Attempts to do so are a fool’s errand, given the distributed and global nature of the internet. Unlike traditional publishers, online publishers cannot wrap their publications in plastic wrappers.

If age-restriction measures cannot be applied easily to the internet, then arguably the Act requires the material to be prohibited outright; even it is of a public interest nature or has artistic or scientific merit. This cannot be allowed to stand in a democracy.

Thankfully, the constitutionality of this section of the Act is being challenged in the Constitutional Court. Public interest law clinic Section 16 has intervened on an amicus curiae basis to make the Internet freedom arguments. Hopefully, they will succeed.

What is the alternative to government control of the internet? An analysis of the take-down procedures and acceptable use policies of major internet service providers reveals that self-regulation is often as, if not more, censorious than government regulation because private companies tend to be risk-averse, implementing terms of service that serve them rather than internet users.

As media theorists James Curran, Natalie Fenton and Des Freedman have argued recently, ‘…if we are to realise the dreams of the internet pioneers, then we need to challenge the context and demand a fresh set of proposals to empower public oversight of and participation in online networks…[This], then, is a critical moment in the internet’s history…the internet is at a turning point’.

Professor Duncan is Highway Africa Chair of Media and Information Society, School of Journalism and Media Studies at Rhodes University.

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